Case 5:07-cv JF Document 27 Filed 10/29/2007 Page 1 of 8

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1 Case :0-cv-00-JF Document Filed 0//00 Page of **E-Filed 0//00** 0 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 0 JOSEPH EASLEY and MARY EASLEY as the surviving parents and lawful heirs of KASEY JO EASLEY, deceased; The Estate of KASEY JO EASLEY, through Decadent s Administrator, JOSEPH EASLEY, v. Plaintiffs, M COMPANY; WALMART STORES INC.; MICHAEL DOMINGOS; CHRISTOPHER BOGGS, MATTHEW YORK and DOES through 00, Defendants. Case Number C 0-00 ORDER GRANTING PLAINTIFFS MOTION FOR REMAND [re: docket nos. 0,, ] I. BACKGROUND The complaint in the instant action was filed originally in the Monterey Superior Court on May, 00. Plaintiffs who are the parents, heirs and representatives of estate of Kasey Jo Easley ( Kasey ), allege claims against M Company and Walmart Stores ( Moving This disposition is not designated for publication and may not be cited. Case No. C 0-00 (JFLC)

2 Case :0-cv-00-JF Document Filed 0//00 Page of 0 0 Defendants ), and Michael Domingos, Christopher Boggs and Matthew York ( non-diverse Defendants ) in connection with Kasey s death on November, 00. The complaint alleges these three claims against the Moving Defendants: () strict liability design defect; () strict liability failure to warn; and () negligence. Two claims for relief are alleged against the nondiverse Defendants: negligence; and a survival cause of action and request for punitive damages. All of the claims are brought pursuant to California law. Plaintiffs allege the following in support of their claims against the non-diverse defendants: On November, 00, Kasey was invited by all of the non-diverse Defendants to a home owned by Domingos and inhabited by Boggs. Complaint at,,. York contacted Kasey on her way to the Domingos/Boggs residence and requested that Kasey purchase four cans of M Dust Remover, a product he and Boggs had instructed Kasey to purchase in the past. Id. at,. After Kasey and each of the non-diverse Defendants had inhaled the M Dust Remover, Boggs, Domingos and York enticed Kasey to use the hot tub... in her fragile condition, all while encouraging her to keep inhaling the M Dust Remover and subsequently left Kasey alone in the hot tub, where she drowned. Id. at -. On July, 00, Defendants removed the action to this Court pursuant to U.S.C. asserting that the non-diverse Defendants had been fraudulently joined. Plaintiffs opposed oppose removal and now move for remand. The Court heard oral argument on September, 00. II. LEGAL STANDARD Pursuant to U.S.C. (a), a defendant may remove an action to federal court if the plaintiff initially could have filed the action in federal court. See Ethridge v. Harbor House Restaurant, F.d, (th Cir. ). A party may file an action in federal court if there is diversity of citizenship among the parties or if the action raises a substantial federal question. Ethridge, F.d at. The party invoking the removal statute bears the burden of establishing federal jurisdiction. Id. The removal statute is strictly construed against removal. Id. The matter therefore should be remanded if there is any doubt as to the existence of federal jurisdiction. Gaus v. Miles, Inc., 0 F.d, (th Cir. ). Case No. C 0-00 (JFLC)

3 Case :0-cv-00-JF Document Filed 0//00 Page of III. DISCUSSION 0 0. Fraudulent Joinder Moving Defendants object to Plaintiffs motion for remand on the basis that Plaintiffs fraudulently have joined non-diverse defendants for the purpose of defeating this court s diversity jurisdiction over the matter. Under the Ninth Circuit rule, where a plaintiff fails to state a cause of action against a resident defendant and the failure is obvious according the settled rules of the state, the joinder of a non-diverse defendant is deemed fraudulent, and the nondiverse defendant s presence in the lawsuit is ignored for the purposes of determining diversity. Simpson v. Union Pac. R.R. Co., F. Supp.d, (N.D. Cal. 00). Although there is a general presumption against fraudulent joinder, if the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state, the joinder of the resident defendant is fraudulent. Hamilton Materials Inc. v. Dow Chem. Corp., No. 0-, 00 WL 00 at * (th Cir. July, 00). In evaluating claims of fraudulent joinder [t]he Fourth, Fifth, Ninth and Tenth Circuits have adopted the pierce the pleadings approach, as have some courts in the First, Second, Sixth, Seventh and Eighth Circuits. A Federal Practice & Procedure Jurisdiction & Related Matters Code Revision, Pt. III Reptr. N. C. By this approach, [i]n deciding a fraudulent joinder claims, the Court may... consider summary judgment type evidence such as affidavits and deposition testimony. Thompson v. Medtronic, Inc., No. :0 CV 00, 00 WL at * (D. Nev. Dec., 00). However, [t]he legitimacy of removal must be decided on evidence available at the time of removal and not on possible future evidence that may be obtained through further discovery, Kite v. Zimmer US, Inc., No. :0 CV 0, 00 WL at * (D. Nev. Nov., 00). Ultimately, evaluation of fraudulent joinder claims does not anticipate a judgment on the merits, but merely considers whether there is any possibility that the plaintiff might prevail. Richardson Carbon & Gasoline Co. v. Interenergy Res., Ltd., F. d, (th Cir. ). Thus, to evaluate properly Moving Defendants claim that Plaintiffs have fraudulently joined Domingos, Boggs and York, this Court must pierce the pleadings and decide whether on Case No. C 0-00 (JFLC)

4 Case :0-cv-00-JF Document Filed 0//00 Page of 0 0 the face of the removed complaint there is any possibility that Plaintiffs could prevail against these individuals. a. Contributory Negligence Does Not Bar Plaintiffs Claim Defendants argue that Plaintiffs claim against the non-diverse Defendants is not viable because under California law participants in unlawful behavior cannot sue other participants for the consequences of that unlawful behavior. To put this argument another way, Defendants argue that Plaintiffs cannot bring a negligence claim on behalf of Kasey against the non-diverse Defendants because Kasey herself acted negligently by violating the law and willingly engaging in dusting. This essentially is a contributory negligence argument. Because California no longer has an all-or-nothing contributory negligence rule, Defendants argument is unpersuasive. In the Supreme Court of California decided the landmark case Li v. Yellow Cab, Cal.d 0 (Cal. ). At issue in Li was whether we should judicially declare no longer applicable in California courts the doctrine of contributory negligence, which bars all recovery when the plaintiff s negligent conduct has contributed as a legal cause in any degree to the harm suffered by him, and hold that it might give way to a system of comparative negligence, which assesses liability in direct proportion to fault. Id. at 0. The Li Court held that contributory negligence should be replaced by the so called pure form of comparative negligence, [which] apportions liability in direct proportion to fault in all cases. Id. at. Under that system plaintiff s contributory negligence, even if it exceeds the amount of the comparative fault of the defendant, reduces but does not prevent his recovery. Sagadin v. Ripper, Cal. App.d, (Cal. Ct. App. Dist. ). Defendants cite only one case decided after Li to support the argument that Kasey s violation of the California Health and Safety Code (prohibiting the use of difluorathane) bars any recovery by the survivors for the negligence of the non-diverse Defendants. However, in that case, Kindt v. Kauffman, Cal. App. d (Cal. Ct. App. d Dist. ), the Court noted explicitly that, because the case was tried prior to Li, the change in law established by Li did not apply. No case decided subsequent to Li establishes the absolute bar asserted by Defendants. Case No. C 0-00 (JFLC)

5 Case :0-cv-00-JF Document Filed 0//00 Page of 0 0 b. Plaintiffs Negligence Claim The elements of a claim for negligence under Civil Code are: () a legal duty to exercise due care; () a breach of this duty; () a causal connection between the breach and plaintiff s resulting injury; and () some damages suffered by the plaintiff. Ahern v. Dillenback, Cal. App. th (Cal. Ct. App. Dist. ). Having examined the allegations in the complaint, the Court concludes that there is at least some possibility that Plaintiffs may succeed in a claim of negligence against the non-diverse Defendants. Consequently, Plaintiffs joinder of the non-diverse Defendants cannot be characterized as a fraudulent joinder. The most difficult question with respect to Plaintiff s negligence claim is whether allegations support a finding that the non-diverse Defendants breached a duty of care owed to Kasey. Plaintiffs argue that allegations are sufficient to meet the pleading requirement: Plaintiffs have alleged that Defendants Domingos, Boggs and York lured and enticed Kasey to their home for the purpose of engaging in dusting and they encouraged her to inhale the substances contained in M Dust Remover once she arrived at the house. The complaint further alleges that Domingos, Boggs and York encouraged Kasey to use a hot tub while she was under the influence of difluorathane and enticed her to keep consuming this product while highly impacted. The Complaint further alleges that Boggs, Domingos and York left Kasey in a highly impaired condition alone in the hot tub, causing her to sustain serious injuries resulting in her death. Plaintiff s allegations track the basic elements of a negligence claim for finding liability against California Defendants. Plaintiffs Motion for Remand to State Court at. The question is whether a court might find that luring and enticing Kasey to engage in dusting, encouraging her to enter the hot tub and leaving her there alone in an altered state constitutes a breach of a duty owed to Kasey by the non-diverse Defendants. The first step in analyzing Plaintiff s claim is to define the duty. In general, an individual owes to others a duty of ordinary or reasonable care, care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence. USAIR Inc. v. United States Dep t. of Navy, F.d 0, (th Cir. ). At least arguably, encouraging Kasey to engage in dusting and allowing her to remain unsupervised in the hot tub is inconsistent with the ordinary and reasonable care one would take to avoid injury to others. See Hansen v. Richey, Cal. App.d (Cal. Ct. Case No. C 0-00 (JFLC)

6 Case :0-cv-00-JF Document Filed 0//00 Page of 0 0 App. d Dist. ) (holding that homeowners who hosted a party where -year-old accidentally drowned in a half-empty pool that had been blocked off to guests by homeowners had breached a duty of care). Additionally, Boggs and Domingos arguably breached a duty of care they owed to Kasey as a social guest in their home. The current standard of care owed to social guests was announced in Rowland v. Christian, P.d (Cal. ): [T]he basic policy of this state set forth by the Legislature in section of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property.... The proper test to be applied to the liability of the possessor of land in accordance with section of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others.... Id. at. A trier of fact could find that, by encouraging Kasey to enter their hot tub and allowing her to remain there unsupervised, Defendants breached their duty to manage their property in a reasonable manner with a view to the probability of injury. Applying the liberal standard applicable to claims of fraudulent joinder, the Court concludes that, because it is probable that one of their theories of negligence may succeed, Plaintiffs joinder of the non-diverse Defendants is proper. Accordingly, because there is no diversity an there is no other basis for federal jurisdiction the motion for remand will be granted.. Attorneys Fees and Costs U.S.C. (c) provides that an order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. Although the ordering of payment of costs is discretionary under (c), costs generally are awarded where the nonremovability of the action is obvious. Tralmer v. Galaxy Airlines, Inc., F. Supp., (D. Nev. ); see also Valdes v. Wal-Mart Stores, Inc, F.d 0, (th Cir. 000) ( [T]he clear language of the statute makes such an award discretionary. ). For instance, fees have been awarded where the motion for removal was found to be frivolous, The Court also notes that under U.S.C. (a) defendants seeking removal must obtain the consent of all other defendants except for those who are nominal, unknown or fraudulently joined. Emrich v. Touch Ross & Co., F.d 0, n. (th Cir. ). In this case, Moving Defendants concede that the non-diverse Defendants did not provide consent. Case No. C 0-00 (JFLC)

7 Case :0-cv-00-JF Document Filed 0//00 Page of see, e.g., Lewis v. Travelers Ins. Co., F. Supp. (S.D.N.Y. 0), obviously improper, see, e.g., Olson v. Olson, 0 F. Supp. (N.D. Ind. ), or taken in bad faith. Zimmerman v. Conrail, 0 F. Supp. (S.D.N.Y. ). The Ninth Circuit has explained that generally, [a]bsent unusual circumstances attorney s fees should not be awarded when the removing party has an objectively reasonable basis for removal. Patel v. Del Taco Inc., F.d, (th Cir. 00). The present case does not involve unusual circumstances. The record does not indicate that Defendants motion was frivolous, obviously improper or made in bad faith. Therefore, the motion for attorneys fees is denied. 0 IV. ORDER Good cause therefor appearing, IT IS HEREBY ORDERED that Plaintiff s motion for remand is GRANTED. The Clerk should close the file. DATED: October, JEREMY FOGEL United States District Judge Case No. C 0-00 (JFLC)

8 Case :0-cv-00-JF Document Filed 0//00 Page of This Order has been served upon the following persons: Alan F. Hunter Frank Mario Pitre Niki B. Okcu Carrie Ann Lubinski Paul Gerhardt Zacher, Jr. 0 0 Mordecai D. Boone Erin Jan Illman Robert Kirk Phillips Gregory Louis Spallas mboone@gordonrees.com eillman@pslaw.net Rphillips@psflaw.net gspllas@pslaw.net Case No. C 0-00 (JFLC)